On September 6, the Ninth Circuit set an oral argument date of November 13 for Independent Party v Padilla, 16-15895. The case will be argued in San Francisco. The issue is whether the California Secretary of State has a duty to tabulate how many California voters have written on their voter registration cards that they are members of the Independent Party. In California, a party that wants to get on the ballot by the registration method must ask the Secretary of State to tabulate how many registered members it has. If it has as many as approximately 60,000, then it becomes a qualified party.
In 2015, the Independent Party notified the Secretary of State that it wishes to qualify in California, but the Secretary of State refused to process the request. He believes that the name “Independent Party” is too similar to the name of the ballot-qualified American Independent Party. Section 5001 of the California Election Code says, “The designated name shall not be so similar to the name of an existing party so as to mislead the voters, and shall not conflict with that of any existing party or political body that has previously filed notice.”
In 1896 the California Supreme Court ruled that the National Democratic Party could qualify, even though the Democratic Party was already on the ballot. Courts in other states have routinely ruled that two parties may both be on the ballot, even though they both have a common word in their names. In 43 states, at one time or another, two parties have been recognized even though both of them shared a common word. It has been very common over the decades for various parties, all with “socialist” in their name, to co-exist.
The California Secretary of State, during the years the American Independent Party has been on the ballot, has permitted these groups to file to have their registrations tallied: Constitutional American, American National Socialist, American Nationalist, American Christian, Real American, American Eagle, American Centrist, American Resurrection, American Third Position, and American Concerned. Thus there doesn’t seem to be any general principle even in California that two parties can’t jointly share a common word. Nevertheless, the U.S. District Court upheld the Secretary of State in 2016, even though the Secretary of State did not submit any evidence that voters would be confused if the Independent Party were recognized.
In the last 40 years, ballot-qualified parties named “Independent Party” have existed in Arkansas, Connecticut, Delaware, Florida, Hawaii, Louisiana, Maryland, New Mexico, North Carolina, Oregon, South Carolina, and Utah.
5001 *so similiar* = void for vagueness.
One more moronic vague adjective/adverb case.
Richard:
What about the Americans Elect Party actually being ON the ballot from 2012-14?
Good point. Actually it got on in 2011, and, as you say, was still on the ballot in 2014. The only time “Americans Elect” appeared on a California ballot was in June 2014, when Alan Reynolds was on the ballot for Lieutenant Governor with a label of “party preference: Americans Elect”. He got 56,027 votes, only 1.34%. Because he got under 2%, Americans Elect went off the ballot at the end of 2014.
There is no constitutional basis for “qualifying” political parties such that voters who have expressed a party preference for a party may not have that party preference appear on the ballot.
Just prior to the 2010 June primary at which Top 2 was approved by the voters, the Secretary of State sent a notice (CC/ROV Memorandum 10086) to county election officials that voters affiliated with “unqualified” (SIC) parties, could vote in the Republican or Democratic primary, even though such voters were NOT Declined to State voters.
That is, the meaning of “party” in the term “party affiliation” was NOT derived from the definition of “party” in Elections Code 338, but rather from the whole scheme of voter registration and party qualification. A new party could not qualify, except via the onerous petition process, if a voter could not express an intent to affiliate with that party before it qualified. The Peace & Freedom Party could not have re-qualified if the party affiliation of voters had been purged.
Party affiliation is protected speech under the 1st Amendment, and the California Constitution may provide even additional protection. Proposition 14 explicitly stated that it was the intent to comply with the Washington Top 2 decision, that found that the party label on a ballot was an expression of the candidate’s political beliefs, and did not imply endorsement by the party. The issue on remand was only whether voters might be confused between the two.
California might adopt a system where there was some evidence of a party’s organization before voters could express a preference. It is reasonable that a voter could not say he prefers Donald Duck, if there was not some evidence of a Donald Duck Party. But California does not have to do so. Instead they have relied on a system of disclosure, where a voter may express a party preference when they register to vote. The California AG or county DA’s could prosecute a voter if they believed a voter perjured themselves on their affidavit of voter registration.
The voters who indicated that they prefer the Independent Party were presumably not confused.
Proposition 14 provided for conversion of party affiliations to party preferences. The implementation of this conversion in SB 6 would be nonsensical, it if was not the intent that affiliations with the Independent, Coffee, Reform, and Socialist Party USA party were not converted to a preference for those parties respectively.
SB 6 added Elections Code 300.5 that says that the party preference of a candidate is the same as they stated on their affidavit of voter registration, which they signed to attest to its truthfullness.
The fundamental purpose of Proposition 14 was to extirpate the statutory right of political parties to have officially-recognized nominees, and to eliminate the state conduct of party nomination primaries. That is, after Proposition 14, political parties had no more right to formally participate in the election of voter-nominated offices such as governor or legislator, than they do in the election of superintendent of public instruction or county supervisor. This does not preclude political parties from saying that they support Joe Smith for Governor or Jane Smith for County Supervisor, though they might be limited by campaign finance laws.
Qualified parties no longer have “participatory rights” for voter-nominated offices. If Elections Code Section 338 conferred participation rights on “qualified” parties, then they would have the right to participate in “any” primary. But they clearly do not have the right to formally participate in non-partisan primaries. Instead 338 only provides for interpreting the word “party” when it can not be determined from context.
The context of “party preference” of a voter and of a candidate is clear. It is what they expressed on their affidavit of voter registration.
SB 6 did retain one privilege for qualified parties. That was the right to endorse candidates on sample ballots that are distributed to all voters (Elections Code 13302). But the text of that section specifically confers that privilege to “qualified parties”. That is, the legislature realized the need to make the distinction explicit for this exceptional provision.
The California Constitution says that a candidate may run in a Top 2 regardless of their party preference, and that a voter may vote for any candidate regardless of the voter’s party preference. To “have regard” means to take into account, make a distinction, or discriminate on the basis of what one is having regard for.
The State of California may NOT take into account, make a distinction, or discriminate on the basis of a candidate’s party preference or a voter’s party preference when administering a Voter-Nominated Primary.
To prevent some candidates from expressing their party preference on the ballot is having regard for those party preferences. How else would Dean Logan or Alex Padilla inform Mimi Soltysik that he could not have his party preference other than to begin:
Re: Your Party Preference
Dear Mr. Soltysik …
In making the distinction, California is discriminating in violation of the explicit provisions of the California Constitution, and violating the candidate’s right to free speech. California may provide a limited forum on its ballots for candidates to express their political views, but it may not discriminate in administration of that forum.
Voter’s who might want to vote for a candidate who expresses the same preference as they hold, are discriminated against if California suppresses that information of the ballot.
Richard:
Had Mr. Reynolds received over 2% on the June ballot, the Americans Elect party would’ve still needed to conduct a large registration drive to get membership up to 1/15 of 1% which turned out to be 11,812. Incidentally, Mr. Ackerman the builder of the party, is wealthy enough to have funded a registration drive out of petty cash.