On January 4, Emidio Soltysik filed his brief in the Ninth Circuit in Soltysik v Padilla, 16-55758. The issue is the California law that lets some candidates for Congress and partisan state office have their party listed on the ballot, but others may not. The brief was written for the ACLU by a team of attorneys who are specialists in the First Amendment. The 59-page brief is very scholarly and should be of interest to anyone who is interested in the free speech portion of the U.S. Constitution.
Page 19: should read 40 to 60 instead of 100, for the office sought by Soltysik. It is 65 to 100 for statewide offices. Page 39 should be “cue” rather than “cute”. California statute refers to a voter registration form or application as an “affidavit”. The use of this term should not be regarded as casual. That is, an affidavit is a legal document executed by and affirmed by the voter. That counties might use the signature to authenticate mailed-in ballots or to detect personation at the polls does not detract from its purpose as a certification of correctness and truthfulness by the voter.
The brief omits the history between SB 6 and AB 1413. It was Debra “Orwell” Bowen who added the requirement that candidate preferences must be for a so-called qualified party. I suspect that unionized workers in the SOS office are trying to sabotage Top 2. The plaintiff should seek discovery. You will recall that the critical argument in the Washington Grange case was that a candidate’s party preference was personal speech. While some SCOTUS justices were skeptical as to whether voters would recognize that a candidate preference was personal, and not a party endorsement, they remanded the case to the district court to determine whether or not voters would be confused in practice. The district court determined voters would not be confused, a decision which was confirmed by the 9th Circuit. Since the SCOTUS had remanded the case in the first place, their decision not to take an appeal must indicate that they were not uncomfortable or discontented with the decision of the lower courts. The practice of restricting party preferences to parties that had previously been qualified to make nominations may be intended to confuse voters, just as the practice of grouping the candidates by preferred party in results.
Just prior to the June 2010 primary at which voters approved Proposition 14, the SOS issued CC/ROV #10086 that clarified the distinction between party affiliation with an “unqualified” (sic) party and a Decline To State voter. Before 2011, there was no distinction between a voter who intended to affiliate with the Democratic Party, and any other party such as the Socialist Party USA, Coffee Party, Natural Law Party, ad infinitum. It was aspirational. Alex Padilla might anticipate that the Democratic Party would have a primary, but it is possible that so many voters change their registration that the Democratic Party would be abandoned. Similarly, Emidio Soltysik would presumably have voted in a Socialist Party USA primary, and it may have been his intent to help the party qualify, just as it may have been the intent of Alex Padilla that the Democratic Party continue to qualify.
Proposition 14 said that existing party affiliations would be converted to party preferences. SB 6 did exactly that, converting party affiliations to party preferences, and converting Decline To State to No Party Preference. Nothing in this conversion suggests that the State of California made a distinction on the basis of whether a party is qualified or not. It is absolutely forbidden for the State of California to change the party preference of a registered voter. If the SOS or County Voter Registrar believes a voter has committed perjury with respect to their party preference, they have an affirmative obligation to refer the issue to the Attorney General or their District Attorney.
That the State maintains a count of registrants with so-called qualified parties is irrelevant. The purpose of the count is to determine whether the party is qualified or not. A party that is not qualified must request the count. A party that is currently qualified, might not make a request if they were concerned that they had fallen below a threshold, so the count is automatically required.
When Dean Logan makes a report of the number of registrants with various parties, qualified or not he in effect trundles over to the filing cabinet and goes through the affidavits of registration one by one. That he may employ assistants and automation is of no never mind, the result will be the same.
California Elections Code $338 defines “party” as a political party qualified to participate in “any primary election”. But “any primary” can not be interpreted as “all primaries”. No party is qualified to formally participate in a primary for a nonpartisan office. Parties of course may provide support for candidates for nonpartisan office, but both the Socialist Party USA and the Democratic Party have that 1st Amendment right. Both may also be required to report expenditures for that support. In ‘Libertarian Party v Eu’, there was no question that the Libertarian Party was supporting the candidacy of David Bergland or Jim Gallagher. But since the Libertarian Party had not nominated them, and it could not be determined if the persons who signed their petitions were themselves Libertarian, they were required to run as “independent” of the party system. Elections Code $338 is not a grant of nebulous “participation rights” it is a definition of the meaning of the term “party” when it appears in the election code. And not only is it distinguishing that without modifiers, it refers to “qualified” parties, but that without modifiers it refers to “political” parties, rather the more common understanding as a party to an agreement or lawsuit, or a celebratory event.
The fundamental purpose of Proposition 14 was to extirpate the privilege of certain political parties to have a state-funded primary to nominate the party’s candidates for the general election. Registrants with the party could participate in the primary by voting, candidates affiliated with the party could appear on the ballot seeking nomination (participation by candidates affiliated with other parties was restricted to running as a write-in candidate), and to having a party nominee appear on the ballot. It is nonsensical to claim that the Democratic Party is formally participating in the primary by being preferred by candidates.
SB 6 also added Elections Code $300.5 which defines define party affiliation to be the party preference disclosed on the affidavit of voter registration.
Elections Code $4 States: “Unless the provision or the context otherwise requires, these general provisions, rules of construction, and definitions shall govern the construction of this code.”
With regard to voter registration it is absurd to interpret “party preference” as a “preference for a qualified party”. The entire process of qualification and disqualification of parties would be unworkable if a registrant could not express a preference for a non-qualified party. The only distinction made is to present the names of qualified parties on the affidavit of voter registration, but even there, there is a distinction made between an other party, which a voter may write-in, and a No Party Preference checkbox. So in the context of a voter registration, “party preference” does not mean “qualified party preference”.
SB 6 provided that a candidate could express their preference for a political party on the ballot, or have a blank space. The candidate’s preference was identical to that on their voter registration. This is entirely consistent with how (occupational or office) designation is handled. The candidate must provide documentation that they hold office, or were compensated or otherwise engaged in their occupation or activity. A candidate’s party preference is documented by their affidavit of voter registration. In addition, the SOS documents the 10-year party preference history of each candidate (or is supposed to – Alex Padilla did not do so for write-in candidates in 2016). A statute that literally says that the party preference of a candidate is that which he wrote on his affidavit of voter registration, does not require additional interpretation or interposition of extraneous words.
The only provision that SB 6 made for qualified parties was in Elections Code $13302, where a qualified party may have endorsements printed in conjunction with the sample ballot. But in this instance, “qualified party” was explicitly stated. Since county election officials may provide separate sample ballots for a partisan primary (i.e. presidential primary or party office election), it makes sense to permit qualified parties to make endorsements in a coincident voter-nominated election. There is at least some interest in requiring a modicum of support before compiling and printing this extra information. But in this singular instance, the authors of SB 6 explicitly granted this privilege to qualified parties.
If the sample ballot indicated that a candidate’s party preference was for the Socialist Party USA, it would in no way interfere with the ability of a qualified party to endorse any candidate for that office.
The California Constitution says that a voter may vote for any candidate “without regard to the political party preference disclosed by the candidate or the voter.” Regard means “consider or think of (someone or something) in a specified way”. Thus if one had regard for the political preference of a voter or candidate, they would consider or think of it in a specified way. In California, Alex Padilla is treating some party preferences in a way different from that of other party preferences. That is he is having regard for the political party preference of candidates and voters.