U.S. District Court Upholds California Secretary of State’s Decision to Refuse to Let the Independent Party Try to Qualify for Ballot Status

Posted on by May 5, 2016
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On May 4, U.S. District Court Judge William B. Shubb, a Bush Sr. appointee, upheld the action of the California Secretary of State relative to the Independent Party. The Secretary of State has refused to tally the number of voters registered in the Independent Party, on the grounds that no matter what the tally might show, such a party would be illegal. The reason is that voters would be confused if a party named the Independent Party were allowed to exist.

The decision does not mention the evidence presented in the case that eleven other states have had Independent Parties on the ballot in recent years, except to say that this evidence will be excluded.

The Secretary of State presented no evidence that confusion would exist if the Independent Party were allowed to exist. The decision seems to acknowledge that there is no clear evidence that confusion would result, because it says voters “might” be confused. Judge Shubb said “the court cannot conceive” of any facts that would cause him to change his mind, so he dismissed the case. Thanks to Markham Robinson for the link.

Ninth Circuit Cancels Montana Republican Open Primary Oral Argument

Posted on by May 5, 2016
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On April 28, the Ninth Circuit cancelled the May 4 scheduled oral argument in Ravalli County Republican Central Committee v McCulloch. This is the lawsuit filed by ten Montana county Republican parties against the open primary, as applied to the Republican Party. It seems likely this case will be held in abeyance until the Hawaii Democratic Party case is decided.

Ninth Circuit Hears Hawaii Democratic Party Case on Open Primaries

Posted on by May 4, 2016
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On May 4, the Ninth Circuit heard Democratic Party of Hawaii v Nago, 13-17545. The issue is whether the Democratic Party has a constitutional right to avoid having its nominees chosen in an open primary. Hawaii voter registration forms do not ask the applicant to choose a party, and on primary day, any voter can request any party’s primary ballot.

The three judges were A. Wallace Tashima and Richard Tallman (Clinton appointees) and Andrew Hurwitz (an Obama appointee). The U.S. District Court had ruled against the Democratic Party, because the party had not presented evidence that persons hostile to the Democratic Party are actually voting in Hawaii Democratic primaries.

The party argued that open primaries are unconstitutional, as applied to parties that don’t desire them. The party argued it would be almost impossible to produce evidence, because Hawaii’s open primary has been in existence since 1998, and the voter’s choice of which party ballot to use is secret. The party argued that if one reads California Democratic Party v Jones, the 2000 U.S. Supreme Court decision that invalidated California’s blanket primary, it should be clear that evidence is not needed.

There are two Ninth Circuit prior decisions on whether evidence is needed when the constitutionality of open or blanket primaries is challenged, and they seem to contradict each other. In September 2003 the Ninth Circuit invalidated Washington state’s blanket primary, in Democratic Party of Washington State v Reed. In that case, the Ninth Circuit said no evidence was needed. But in December 2003, another panel of the Ninth Circuit ruled that the Libertarian Party’s lawsuit against the Arizona open primary did need evidence, and sent the case back to the U.S. District Court (the party eventually won the case in 2007). That case was Arizona Libertarian Party v Bayless.

Judge Tashima speculated that if the Democratic Party won the case, the effect would be to shift the Democratic Party of Hawaii to the left.

Dueling Colorado Proposals on How Parties Nominate Candidates

Posted on by May 3, 2016
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Colorado now has closed primary elections, and generally only the Democratic and Republican Parties have primary elections, although in rare cases qualified minor parties also have them. Also, currently, Colorado has no presidential primaries

An initiative is circulating that would amend the law so that independent voters could vote in a special primary ballot that includes the names of all candidates. The initiative says if a party doesn’t like that, if three-fourths of the members of the state central committee choose to nominate for all office by party meeting instead of a primary, that is allowed. However, the proponents know that it is very difficult for any party to pass anything that controversial with a three-fourths vote. Here is the text of the initiative.

Another initiative is circulating that would provide for a presidential primary. Here is the text. It says that independents could vote in any party’s presidential primary.

Finally, a bill in the legislature would set up a presidential primary. It provides that all independent voters would be free to temporarily join a party, and then they could vote in that party’s presidential primary, and they would automatically become independents again a few months after the presidential primary. The bill, HB 1454, passed the House Committee that handles election law bills on April 25, and it passed the House Appropriations Committee on April 28. However, it was amended on April 28 to say that if any initiative on the subject of presidential primaries passes in November, that initiative is automatically amended to say that any party is free to choose to nominate for all office by party meeting instead of by primary.

Proponents of HB 1454 inserted this amendment to help defeat the presidential primary initiative if it gets on the ballot. Proponents of the bill say that the presidential primary initiative idea would cost far too much money. This is because all registered voters in Colorado automatically receive ballots in the postal mail, and proponents of HB 1454 say that if the initiative passes, thousands of ballots would need to be mailed to all independents (the envelope would include both a Democratic ballot and a Republican ballot), and many or most of those ballots would never be returned and would be wasted. By contrast, the bill requires independents to request a presidential primary ballot, so fewer ballots would need to be printed and mailed.