On September 13, both sides in the lawsuit Soltysik v Padilla, 16-55758, now pending in the Ninth Circuit, agreed to mediate the case. The mediation conference is set for September 27. The issue is whether members of unqualified parties may have their party printed on the ballot when they run for Congress or partisan state office. The plaintiffs are registered “Socialist” but under current law, their ballot label is “party preference: none.”
By contrast, Washington, the only other state that uses a top-two system, lets any candidate choose any partisan label if it is 15 characters or less and is not obscene. This year, in the California primary, two candidates were on the ballot for U.S. Senate who were registered members of unqualified parties. Eleanor Garcia is registered “Socialist Workers” and Don Grundmann is registered “Constitution.”
What is there to *mediate* ????
The name stuff does or does NOT on its face (aka facially) violate the 1st Amdt – 14th Amdt, Sec. 1.
Thus one more 9th Circuit case going to SCOTUS with its nonstop 4-4 ties.
Like Demo Rep, I’m curious about what “mediation” means with respect to this kind of issue. Is there supposed to be some middle ground? If so, what does it look like?
It is conceivable the state could make a suggestion that the Secretary of State will strongly recommend to the legislature in January 2017 that the legislature change the law. In return the plaintiffs could agree to delay the lawsuit.
Something similar was done in this year’s Maryland case against the law requiring a statewide independent to get over 40,000 signatures, whereas an entire party needs 10,000. The state said it would not require more than 10,000 signatures for any statewide independent candidates for the next two elections, and it would ask the legislature to change the law. In return the plaintiff dropped the case, without prejudice so if things don’t go well he is free to re-file it.
Thanks, Richard. That makes sense.
When a complaint is filed, there is or is NOT a violation of the LAW — past, current or future.
The mediation stuff is one more perversion invented by the hack courts to delay justice.
The State Constitution says that “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”
Mimi Soltysik disclosed that he prefers the Socialist Party on his affidavit of voter registration, which he signed to certify that all the information was truthful and correct, subject to perjury charges. If the Socialist Party sought to become qualified, his registration would be counted. But it doesn’t become true because the party becomes qualified, it is true, because he signed his name to it. If Alex Padilla or Dean Logan thinks it is false and done with fraudulent intent, they should refer it to the AG or DA.
A voter who wanted to vote for candidates who preferred the Socialist Party would have his right to vote diminished because the State of California had regard for, or took into account, the political party preference disclosed by Soltysik.
This is worse than in ‘Gralike’ where the compelled speech was merely disparaging, since California would require Soltysik to state a falsehood, that he had no party preference.
Proposition 14 said that it intended to comply with the SCOTUS ‘Washington Grange’ decision. The key argument in that decision was that a candidate’s party preference was personal, and did not imply endorsement by the body preferred. As a personal expression, it is protected free speech. On remand, the district court was told to determine whether “I prefer Salmon Yoga Party” implies to voters that the Salmon Yoga Party prefers the candidate. The district court determined that it did not, a decision affirmed by the 9th Circuit. The SCOTUS declined to take an appeal to the as applied challenge, which must indicate some contentment with the lower court decision.
California makes no distinction between the party preference of Alex Padilla (Democratic) and Mimi Soltysik (Socialist). Both are quite free to vote or not vote for Donald Trump, or contribute to the campaign of Gary Johnson. At this point it means that they intend to vote in the 2020 presidential primary and party elections of their respective parties. We don’t know whether registration for the Democratic Party will have dropped such that the party is no longer qualified. We don’t know whether the Socialist Party will have gained enough registrants by then to be qualified. Both are possible.
If a voter could not affiliate with a non-qualified party, California’s qualification process is unworkable. While California could develop a system where a party was qualified before a voter could register with it, California has chosen instead to use a system of disclosure rather than regulation.
‘Storer’ simply does not apply to the changed circumstances of a Top 2 election. Storer required a modicum of support in order for a party to nominate, and for the state of California to bear the expense of a party primary. Nomination did not imply that the candidate was a member of the party, but that the party electorate had nominated him, though it did make it more difficult for a non-member to be nominated since it had to be as a write-in candidate. Registration with a party literally meant “intent to affiliate with the party at the next primary”. If enough voters indicated that they were going to vote in the primary of a party, a party nominating primary would be held, and the nominated candidate would be deemed to have a modicum of support. “Declined To State” meant that a voter declined to state what their intentions were for the next primary. Candidates not nominated in a primary had to be nominated by a petition with a significant number of signatures.
Under a voter-nominated primary, the electorate as a whole makes the nomination. The three words on the ballot are equivalent to a short statement in the voter’s guide. The state requires that the candidate had expressed the preference prior to seeking the nomination, and requires the preference not to change until after the general election. The state also publishes a 10-year history of a candidate’s registration history so voters can evaluate the consistency of a candidate’s beliefs. Of course, each voter can evaluate that history (e.g. “flits around like a moth”, “open to new ideas and self growth”, etc.), just as they evaluate the occupation (e.g. to some, “lawyer” implies shyster or ambulance chaser, to others, an advocate for justice).
Voter confusion is not a legitimate justification for restricting candidates (e.g. voters might be confused by unpopular viewpoints, or that are not part of a state-approved orthodoxy.
Nor is ballot crowding a justification. Even if ballot crowding were an issue, requiring false statements is not a legitimate means of reducing the number of candidates.
The state has relied on Election Code Section 338 as somehow conferring “participation rights” on qualified political parties. But a definition is simply a rule to be applied if the provision or context does not require a different interpretation.
The purpose of Proposition 14 was to extirpate formal participation rights by political parties in primaries for partisan offices other than President and party offices, just as a century ago California eliminated partisan elections for city and county offices. Political parties are still free to support candidates outside the election code, subject to certain restrictions such as campaign finance reporting. If Soltysik had carried through with his plan to run for the Assembly, the Socialist Party might have supported his candidacy, but would have been required to report expenditures on his behalf.
But SB 6 added Section 300.5 which defines that party affiliation for a voter or a candidate is what they indicated as their party preference on their affidavit of voter registration. Only Debra Orwell Bowen would interpret party preference on an election ballot as being something different than what is indicated by the voter personally on their affidavit of voter registration. Mimi Soltysik did not decline to disclose a preference for the Libertarian or Green parties, or any of the other four so-called qualified parties. He disclosed a preference for the Socialist Party, signed the affidavit to indicate that this preference was truthful. He might quite like the Republican Party, but California limits a voter to indicate a single party preference.
In the context of voter registration, the concept of a non-qualified qualified party makes absolutely no sense. The only possible interpretation is “what the voter personally indicated on their affidavit of voter registration”
In the only privilege retained by “qualified” political parties, SB 6 explicitly in Elections Code 13302(b) gives a “qualified political party” the right to make endorsements in the sample ballot. There is no requirement that a party endorse any candidates, and no restriction on their endorsing candidates who prefer other parties.
California may have an interest in regulating parties. For example, ballots in Los Angeles County must be printed in about 20 languages. The registrar may need to contact party leaders for assistant. It would be unfortunate if the Mandarin characters used for the Socialist Party also meant “running dog”.
And some voters may say they prefer “Good Government” or “Donald Duck” or “Blue Skies” when there is no party of that name. But to be an organized political party, even if a large state might only require 100 voters to indicate some sort of organization. California could switch its qualification system to be based on petition only, with the understanding that the petitioners would have their registration changed if the party qualified. This would avoid the situation of Americans Elect qualifying even there was no actual party.
Regulations similar to Florida could be used. I would eliminate the financial requirements, which are too much like a poll tax. If a party does have receipts and expenditures beyond a minimal amount they will have to report it. But since the entity that California is recognizing is a body of registered voters, a political party should have to affirmatively demonstrate that the registered voters exercise control of the party. This might require that the voters elect the party officials, and they have an opportunity to participate in periodic conventions. This is similar to the regulation of corporations. California does not require corporations to make particular products or even make a profit, but they do require that the shareholders elect the board of directors, and that there be annual shareholder meetings.
California could maintain the current restrictions on presidential primaries and nominations, but there is no reason that a small party could not have its presidential candidate appear with the party name on the ballot. A simple implementation would permit a party to include all registrants to be deemed to support the party nominee. Larger parties thus would not need to supplement their registration with a petition.