The Ninth Circuit expects to hear Soltysik v Padilla, 16-55758, in February 2018. This is the case on whether California is violating the First Amendment and/or the Fourteenth Amendment by letting some candidates have their party membership listed on ballots (for Congress and partisan state office), but not letting certain other candidates have their party membership listed. The plaintiff, Emidio Soltysik, is a registered Socialist, but because the Socialist Party is not a qualified party, Soltysik can only have the ballot label “Party preference: none”.
Equal ballot access tests —
very likely to get screwed up even more due to earlier JUNK SCOTUS cases.
It also violates the California Constitution which says that candidates may run, and voters may vote regardless of their party preference. California is discriminating on the basis of Soltysik’s party preference. That is to say, California is taking into account, or having regard for Soltysik’s party preference.
Elections Code 300.5 says “‘Affiliated with a political party’ as used in reference to a voter or to a candidate for a voter-nominated office means the party preference that the voter or candidate has disclosed on his or her affidavit of registration.” Soltysik disclosed his preference for the Socialist Party USA on his affidavit of registration. He signed it so as to certify its veracity. If the SOS or Dean Logan do not believe he was truthful, they should refer the matter to the AG or DA for possible prosecution for perjury. In conjunction with running for a voter-nominated office,
California is not only denying Soltysik the ability to have his personal political views expressed in the same manner as other candidates, he is forced to express a falsehood – that he has no political party preference. The reason that the Socialist Party USA is not a so-called “qualified” party, is that it is less popular than other parties. That is, California is denying Soltysik the ability to express his political views because they are non-popular or heterodox. Soltysik is told to express popular state-sanctioned orthodox political views or be silent or pretend to have no beliefs at all.
California may no more deny his expression of party preference on the ballot, than they could require him to wear a bag over his head in his picture in the voter’s guide, or to write his name on the ballot in upside down gothic.
Proposition 14 explicitly said it was the intent to comply with the SCOTUS decision in the Washington Grange case. The key finding by the Supreme Court was that a party preference on a ballot was a personal expression of political belief, rather than an endorsement by the political party. Chief Justice Roberts was skeptical whether voters would not be confused, so the case was remanded back to the federal district court to make a judgment after hearing the case. The federal district court determined that it was not confusing to voters, and this was affirmed by the 9th Circuit (the SCOTUS declined to review the case. Given that they had directed the lower courts to make a determination, this suggests that they were content with that determination).
By the contrived construction that Debra Bowen imposed on the candidate application, California is preventing Soltysik from expressing his political beliefs, the key element in the SCOTUS’ Washington decision.