C. T. Weber, a veteran activist in the Peace & Freedom Party and a former state chair of that party, has this commentary on the California measure known as the “top-two open primary”. Weber’s commentary appears on the Peace & Freedom Party’s blog.
The Alabama House Constitution and Elections Committee will hear HB 142 on January 27. This bill lowers the number of signatures for an independent candidate (for office other than president) from 3% of the last gubernatorial vote, to 1.5% of the last gubernatorial vote. For 2010, the number for a statewide office would drop from 37,513 signatures, to 18,757 signatures. The bill’s author is Representative Cam Ward (R-Alabaster). Thanks to Don Webb for this news. UPDATE: the hearing is at 9 a.m., in Room 603 of the State House Building, 11 S. Union St., Montgomery.
Two members of the California legislature are pondering whether or not to introduce a bill to ease the ballot access petition requirements for statewide independent candidates. They have at least gone to the trouble of asking the Legislative Counsel to draft language for such a proposed bill.
Californians for Electoral Reform is working for this goal. The existing California law requires statewide independent candidates to obtain 173,041 valid signatures for 2010. In the entire history of the U.S., no candidate has ever overcome a petition requirement greater than 134,781 signatures. That was done by Ross Perot in California in 1992. A “candidate petition” means a petition that names a candidate.
In 1973, the legislature appointed an independent commission to suggest changes in the Election Code. The commission, headed by the Alameda County Registrar of Voters and the president of the League of Women Voters of California, recommended that the statewide independent petition be set at 10,000 signatures. The commission also recommended 3,000 signatures for independent candidates for U.S. House and State Senate, and 1,500 signatures for Assembly candidates. The legislature did not act on that recommendation, although it did pass some of the other suggestions of the commission.
On January 19, the South Florida Tea Party, Inc., a non-profit organization seeking 501(c)(4) status, filed a lawsuit in federal court against the ballot-qualified Tea Party. The lawsuit asks the court to order the qualified minor political party to change its name. The case is South Florida Tea Party, Inc., v Tea Party, sou. dist, 10-80062-cv. UPDATE: on February 17, the plaintiffs filed an amended complaint, which makes the same demand that the party change its name. The new complaint has many more Tea Party groups listed as co-plaintiffs, including some from states other than Florida.
The Complaint seems internally contradictory. Near the beginning it says, “The Defendants organization of a political party that utilizes the phrase ‘Tea Party’ is not in and of itself objectionable or unlawful.” But toward the end, when it summarizes what relief it is asking for, it asks for a court order that the ballot-qualified minor party “be required to amend their filings with the appropriate office of the State of Florida such that their registered political party currently registered as ‘Tea Party’ must include other terms in order to avoid public confusion that the Florida ‘Tea Party’ is somehow endorsed or approved by the Plaintiffs and other persons or entities that are similarly situated.”
The group that filed the lawsuit says that the tea party movement “are working toward reform within the Republican Party and view third party candidacies as counterproductive.”
The ballot-qualified Tea Party gained recognition as a political party in Florida in August 2009. Florida is the only state in which there is a ballot-qualified political party called “Tea Party” (the Boston Tea Party is no longer a ballot-qualified party in Florida and was never a qualified party in any other state).
In 1997, the 2nd circuit ruled in United We Stand America, Inc., v United We Stand, America New York, 128 F 3d 86, that the federal law on trademarks does cover political organizations. However, the recent Florida complaint does not allege that the Tea Party movement has trademarked its name. The complaint points out that the ballot-qualified party has not trademarked its name. Thanks to John Wayne Smith for this news. To read the complaint, go to this story at TPMMuckraker, which has a link to the Complaint.
At the June 8, 2010 California primary, voters will see two election-law related ballot measures, both put on the ballot by the legislature. One is the “California Fair Elections Act of 2008”, which implements public funding for candidates for Secretary of State in 2014 and 2018. The other is the “Top Two Candidates Open Primary Act, by State Senator Abel Maldonado.
The California Constitution says, “If provisions of 2 or more measures approved at the same election conflict, those of the measure receiving the highest affirmative vote shall prevail.” In June 1988, two campaign finance measures both passed in California. In Taxpayers to Limit Campaign Spending v Fair Political Practices Commission, 799 P 2d 1220 (1990), the California Supreme Court said that if two measures both pass, and they each attempt to create a comprehensive regulatory scheme related to the same subject, only the measure that received the most votes may take effect.
In a later decision, the California Supreme Court said in Yoshisato v Superior Court, 831 P 2d 327 (1992) that if two ballot measures both pass, and they technically both amend the same section, but in different ways, there is no conflict if the two measures were not presented to the voters (in the Official Voters Handbook) as conflicting or competing ideas.
The two election law measures that will be on the June 2010 California ballot do not fit together. The public funding measure has at least eight sections that presume that political parties nominate candidates for state office, and that independent candidates do not appear on the primary ballot. But the top-two open primary sets up a scheme under which parties would not have nominees for state office, and also provides that independent candidates would run in the primary.
The public funding measure sections that conflict with the top-two open primary structure are:
(1) 91045 discusses parties whose nominee for Secretary of State received 10% of the votes at the last election, but under “top-two”, parties wouldn’t have nominees for Secretary of State.
(2) 91046 defines an “office-qualified candidate” as a member of the type of party defined in section 91045.
(3) 91051 defines “party candidate” as a member of a party that holds a primary election, but under “top-two”, parties wouldn’t have primaries.
(4) 91053 defines “performance-qualified candidate” is defined as a member of a party that polled 10% who raises $5 contributions from at least 7,500 voters, or an independent candidate who has raised $5 contributions from at least 15,000 voters, or a member of a qualified minor party that has raised $5 contrib utions from at least 15,000 voters.
(5) 91071(b)(2) refers to a candidate who won a party’s nomination.
(6) 91073(b) says an independent candidate who does not run in a primary may become a performance-qualified candidate by collecting twice as many qualifying contributions as required of an office-qualified candidate.
If both the public funding measure and the “top-two” measure pass, the Maldonado “top-two” measure would take effect, because it is a Constitutional Amendment. But if they both pass, it appears that the public funding measure could not go into effect, because of the California Constitutional provision quoted at the beginning of this post. If they both pass, the public funding measure would make it impossible for any candidate to receive public funding. No independent candidate could receive public funding because of section 91073(b) which only lets independents qualify if they don’t run in a primary. There could be no such independent candidates, because under “top-two”, all independents run in the primary. And no party member could receive public funding because the definitions of candidates who qualify for public funding are all based on that candidate’s party having polled a certain number of votes for Secretary of State in the previous election.
Furthermore, section 91065 says independent candidates may raise contributions from January through June, whereas members of qualified parties may raise contributions from September of the year before the election, through February of the election year. If “top-two” passes, and all candidates run in the primary (even independent candidates) it would make no sense for some of those candidates to be permitted to start raising money in the year before the election, whereas others could not.
Finally, 91095.5 has special rules for candidates who receive public funding who are attacked during the primary season by a candidate running in another party’s primary, but this section has no application if “top-two” passes.
Any state official trying to administer the public funding, if it passed, and if “top-two” also passed, would find it impossible to know how many qualifying contributions are needed to qualify, and how much money should be award to the candidate, because the public funding measure treats major party members, minor party members, and independent candidates, differently from each other for both those variables. The definitions would no longer be operative in a “top-two” world. It seems likely that even if the public funding measure passes, it will be a nullity of “top-two” also passes.
