According to this story on IVN (Independent Voters Network), California Assemblymember Kristin Olson (R-Modesto) and Senator Anthony Cannella (R-Ceres) introduced ACR 145 on February 26. It is not up yet on the California legislature’s web page. But the article says ACR 145 would ask the Secretary of State to tell county election officials to print up special presidential primary ballots for voters who do not desire to use a partisan presidential primary ballot.
California has six qualified parties, and they all have their own presidential primary. Under current law, at the polling place, independent voters are told that they may have a Democratic, Libertarian, or American Independent presidential primary if they wish. Apparently the special presidential primary ballot described in ACR 145 would list all 43 presidential candidates who are already on one of the six partisan primary ballots.
The IVN article says that the Resolution would point out to the Secretary of State that the State Constitution requires an “open” presidential primary, and therefore he doesn’t need any legislative authority to create such ballots. Without an opportunity yet to read the measure, it is not clear what the votes on this special primary ballot would be used for. Normal presidential primaries elect Delegates to national presidential conventions.
The IVN claim that the California Constitution mandates an “open” presidential primary is misleading. The California Constitutional provision on “open” presidential primaries was added by the voters in June 1972, when they approved Proposition 4. Proposition 4 on the ballot was described this way: “Open presidential primary. Requires Legislature to provide for open presidential primary in which candidates on ballot are those found by Secretary of State to be recognized candidates throughout nation or California for office of President, and such candidates whose names are placed on ballot by petition. Excludes any candidate who has filed affidavit that he is not a candidate.”
In other words, in 1972, “open presidential primary” meant one in which candidates did not need to petition. Before Proposition 4 passed, all presidential primary candidates needed a petition of one-half of 1% of their party’s last gubernatorial vote. In 1972 there were eight Democrats and two Republicans who submitted petitions to be on California presidential primary ballots. That amounted to 17,199 valid signatures for Republicans, and 14,695 for Democrats. Election officials found it taxing to check so many petitions for validity in a short amount of time, and pressed for Proposition 4 to eliminate these petitions.
The California Constitutional provision, Article II, sec. 5(c), says, “The Legislature shall provide for partisan elections for presidential candidates, and political party and party central committees, including an open presidential primary whereby the candidates on the ballot are those found by the Secretary of State to be recognized candidates for the office of President.”
The Constitution was amended twice in 1972. As you note, it was amended at the June primary to provide for the Secretary of State to simply list newsworthy candidates on the ballot. It was in response to the 1968 Democratic nomination where Humphrey had been nominated without being on many primary ballots.
In November, Article III was extensively rewritten removing lots of text that was better suited for statute. The measure also implemented the 18 YO vote for state elections (it would have also implemented it for federal elections, except for Justice Black’s silly opinion in ‘Oregon v Mitchell’). Since the “open presidential primary” had just been added in June, it was maintained, even though it was something that might be better suited for statute.
In 2004, voters approved the misbegotten Proposition 60, the sole purpose of which was to wrong-foot Proposition 62 which would have implemented a Top 2 primary. Proposition 60 granted qualified parties constitutional nomination right. It guaranteed that the leading candidate could appear on the general election ballot (this guarantee was not accurate since write-in candidates couldn’t be nominated unless they also received X-many votes).
Proposition 60 lassoed in the the presidential provisions, even though a presidential preference primary does not make nominations. Arguably, Proposition 60 requires that presidential primaries be direct (popular) primaries, just like was the case for other offices.
Proposition 14 then made the presidential primary the single “partisan” election, which should make a direct primary even more imperative.
Since Article II is foremost about the political franchise, any voter would have standing to challenge the fact that the winner of the primary is not placed on the general election ballot.
If there were a direct presidential primary, there would be no reason for a non-partisan ballot.
It would be better for California to separate out the language for different types of elections into separate sections:
(1) Non-partisan offices;
(2) Top 2 offices;
(3) Presidency;
(4) Party offices.
If the legislature wants to do something useful, they should tell the SOS and AG to stop defending against the Soltysik lawsuit.
Then they should rewrite the law defining a minor party. This would take into account whether a party has a name, has a recognized structure officials who can legally represent the party (eg chair, secretary, and treasurer); complies with campaign finance laws; has a defined set of rules; and
an opportunity for voters registered with the party to control the party (republican form of governance). There could be an activity requirement, such as a biennial state convention. There is no reason for more than a minimal registration threshold (perhaps 50 or 100 registered voters).
The State’s interest with regard to party preference is analogous to that for the occupational designation. The State requires that the occupation be real and that the candidate practiced it in the recent past. It does not care AND can not legally care whether there are 100,000 practitioners in California – and if not, require the ballot to read “No Occupation”. The State can determine whether a candidate prefers a particular political party, by looking at his affidavit of voter registration. The signing of the affidavit guarantees that the information therein is truthful and correct, and subject to perjury. If someone believes that a party preference was untruthful, and was done with intent, they could report the voter or candidate to the AG or a DA for prosecution. But the State may ensure that the entity that is preferred is actually a political party, which the “minor party” status would provide.
The ability to write-in an unknown party preference on an affidavit of voter registration would be removed. Instead new minor parties would be recognized by a petition of those who are forming the party. If the petition has the required number of registered votes, then the party registration of the petitioners would be changed. There might be a verification process, to make sure the signer understood that their party registration might change.
California could provide for the election of party officers by conducting mail-only ballots in odd years. The counties would have to mail out the ballots, and collect returned ballots, and verify that they were properly signed.
They could then hand the ballots over to the party to be counted. If a party preferred a convention form of governance, the counties would simply mail an invitation to a convention.
A major party would be based on having more registered voters. There is no reason to have a performance-based level of support. The “party” that is recognized by the State is the body of voters who have affirmatively expressed their preference for the party. A major party would be entitled to a presidential preference primary, and to have its endorsements in voter-nominated offices included on sample ballots. Endorsement rights would be transferred from the county party to the state party. If parties have certain privileges with regard to appointment of polling clerks, this could be maintained for major parties only.
Placement of presidential candidates on the general election ballot would be by petition only. But a political party could count all voters registered with the party as supporting the nomination. Thus a minor party could qualify its presidential nominee by gathering additional signatures. A candidate that qualified by petition would have the party name appear on the ballot.
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