On December 3, the Ninth Circuit issued an opinion in Soltysik v Padilla, 16-55758. This is the case in which Emidio “Mimi” Soltysik, a registered Socialist, challenged the California law that forces him to appear on the ballot with the label “party preference: none.” By contrast, members of qualified parties have the label “party preference: (here insert the name of the party the candidate is registered into).” The Socialist Party has not been a ballot-qualified party in California since 1938.

Here is the opinion. The vote was 2-1. The opinion is by Judge John B. Owens, an Obama appointee, and signed by Judge William A. Fletcher, a Clinton appointee. The dissent is by Judge Johnnie Rawlinson, also a Clinton appointee. The opinion says that the case is to be remanded back to U.S. District Court, for evidence (the U.S. District Court had originally dismissed the case before allowing any evidence to be presented). The majority says that California must present evidence showing that the law is needed to prevent voter confusion. The decision says on page 16, “Indeed, it seems self-evident” that the existing law causes voter confusion rather than preventing it.

On remand, it will be possible for the plaintiffs to show that approximately half the states allow petitioning candidates to choose any short partisan label they wish (as long as it doesn’t mimic the name of a qualified party), and that there is no voter confusion in those states. The decision also says, “The lower court may also wish to consider whether California’s interest in policing the qualified-nonqualified distinction remains vital under the current top-two regime and thus whether that interest justifies the burden the statutes impose (see page 22).”