Leading Montana Political Blog “Montana Cowgirl” Blasts Montana Top-Two Open Primary Bill

Posted on by February 14, 2013
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On February 13, Montana Cowgirl blog posted this article about HB 436, the Montana bill to convert elections to a top-two open primary system. Montana Cowgirl is well-known, leans to Democrats, and is run by an anonymous individual or group. The article takes the tack that the Montana bill exists to keep Libertarian Party candidates off the November ballot.

In every state in which top-two advocates have been active, the rationale for the system is different. The idea was born in Louisiana to keep conservative Democrats in power. Then it was created in Washington state on the theory that the top-two open primary would be a substitute for the blanket primary (which had been invalidated in court on freedom of association grounds). It was promoted in California on the grounds that it would injure “extreme left” Democrats and “extreme right” Republicans. The Arizona top-two was promoted as a way to decrease the power of conservative Republicans. Now the story about the Montana effort seems to be that it will help Republicans win. Thanks to Rob Richie for the link.

Ninth Circuit Hears Arguments Over Ballot Labels in California

Posted on by February 13, 2013
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On February 13, the Ninth Circuit heard arguments in Chamness v Maldonado, 11-56303, over California’s law on partisan labels on the ballot in congressional elections and elections for partisan state office. California law puts party labels on the ballot if the candidate is registered in a qualified party, but all other candidates must have “no party preference” on the ballot. This is true for independent candidates, and also for candidates who are registered members of unqualified parties. The lower court had upheld this law.

The panel seemed unpersuaded that the U.S. Constitution requires states to permit all candidates to list their party of registration on the ballot, but they also seemed to feel that the mandatory label “no party preference” is not fair to candidates who hold themselves out as independent candidates. They also had some sympathy for members of unqualified parties who are not accurately described by that label. Judge Paul Watford suggested that requiring candidates to have “no party preference” is a form of forced speech, and such candidates should at least have the option to have no ballot label whatsoever. He also suggested that the label “Not affiliated with a qualified party” would be more accurate.

Judge Marsha Berzon was interested in the fact that California law recognizes “political bodies”. A “political body” is a group that has elected state officers, has filed the names of these officers with the state, and has notified the Secretary of State that it is trying to qualify. This point is important because it shows that unqualified parties in California do exist and do have a structure.

The attorney for the California Secretary of State said that it is easy to qualify a new party in California, a statement that is not true. Except for Americans Elect, no new party has qualified in California since 1995. California requires more registrations to get a newly-qualifying party on the ballot than any other state even requires signatures on a petition. Currently, California requires 103,008 registered members, or 1,030,080 valid signatures, whereas no other state requires more than 89,340 valid signatures. Furthermore, the deadline for qualifying a new party in California was held unconstitutional last year. No legislator so far has been willing to introduce a bill to replace the old law.

Here is a link to the audio for the hearing, which lasts about 45 minutes. Thanks to Mike Feinstein for the link.

Washington Secretary of State’s Bill to Change Definition of Qualified Party Moves Ahead

Posted on by February 13, 2013
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The Washington Secretary of State has asked the legislature to clarify the definition of a ballot-qualified party. The existing law says that it is a party that polled at least 5% for any statewide nominee, but parties no longer have nominees in Washington state, except for President. The Libertarian Party brought a lawsuit last year, alleging that even the Republican Party was no longer ballot-qualified because it had no nominee for U.S. Senate in 2010 (in 2010, U.S. Senate was the only statewide race on the ballot). The Libertarian Party lost the lawsuit because the court ruled that because the Republicans had endorsed a U.S. Senate candidate, that satisfied the requirement.

Nevertheless, the existing law is quite awkward, so the Secretary of State is asking the legislature to pass SB 5518 and HB 1157, identical bills that define a qualified party to be a party that polled 5% for President at the last presidential election. HB 1157 passed the House Government Operations & Election Committee on February 7.

The problem with the Secretary of State’s approach is that it precludes a party that never runs for President from ever being a qualified party in Washington state. There are many qualified one-state political parties in the U.S. that have never had a presidential candidate and never want to have one, because they only care about state and local politics. There is no case law on whether a state can exclude a party with no interest in presidential elections from being a qualified party, but it would seem a one-state party with no interest in the presidential election would have a strong complaint. Thanks to Linde Knighton for this news.

Washington state doesn’t use the term “qualified party” in its election law; it uses the term “major party.” In Washington, only major parties are entitled to choose party officers in the primary, and to participate in choosing a new legislator when there is a legislative vacancy and the past legislator was a member of that party.