A Rasmussen Poll released on September 14 shows that Tom Tancredo, Constitution Party gubernatorial nominee in Colorado, has 25%, whereas the Republican nominee, Dan Maes, has 21%.  Democratic nominee John Hickenlooper has 46%, “other candidate” has 1%, and 6% are undecided.  The other candidates on the ballot are Libertarian Jaimes Brown, and two independent candidates, Jason Clark and Paul Fiorino.

The New York Daily News has discovered that the New York State Board of Elections has made a quiet decision to credit the votes to the Democratic and Republican Parties, when a voter votes for one candidate twice (once on the ballot line of one of the two major parties, and once on the line of a smaller party).  See this story.

The story does not explain what the State Board of Elections will do in the case of a candidate who has the nomination of two parties other than the Democratic and Republican Parties.  For example, there have been candidates in the past who had the nomination of both the Conservative Party and the Right to Life Party, but not the Republican nor Democratic Parties.  Nor does the story explain what will be done in the case of a candidate who has the nomination of both the Democratic and Republican Parties.  There are always many candidates for Justice of the Supreme Court who have the nomination of both major parties.

This problem did not generally arise in the past in New York state, because in the past New York state used mechanical voting machines, and the machine physically prevented a voter from voting twice for the same candidate, on two different party lines.  But not all votes in New York state in the past were cast on mechanical voting machines (for example, mail ballots were used for certain absentee voters), so there must be a New York state precedent for this problem.

Vermont, a fusion state, was frustrated by voters who cast a vote for one candidate on two different party lines.  Vermont found that up to 3% of the voters sometimes voted this way.  Vermont’s response was to eliminate separate lines on the ballot for fusion candidates, which meant that there would only be one empty square for the voter to mark an “X” for any particular candidate.  This is sometimes called aggregated fusion.  Other states that use aggregated fusion, to avoid the problem, are California, Massachusetts, New Hampshire, Oregon, and Pennsylvania.  Thanks to Rob Richie for the link.

On September 13, a Superior Court Judge in San Francisco issued a tentative ruling in Field v Bowen, cgc-10-502018.  It reads as follows:  “Plaintiffs’ motion for Preliminary Injunction is denied.  Plaintiffs have standing to file their claims and bring this motion.  Storer v Brown.  However, plaintiffs fail to show a likelihood of success on the merits.  It is constitutional to ban write-in voting under U.S. and California Supreme Court precedent.  See Burdick v Takushi and Edelstein v City and County of San Francisco.  When Election Code sections 8141.5 and 8606 are read together, it is apparent that the Legislature intended to ban write-ins in the general election (See also comments of the Secretary of State and the Assembly bill analysis).  Insufficient evidence and case law support the argument that the party preference ban violates the Equal Protection Clause or the Elections Clause.  The state may require candidates not affiliated with qualified parties to use the ‘independent’ label.  See Libertarian Party v Eu, 1980.  Several federal circuit courts have also held that a state is not constitutionally obligated to permit candidates to list their preferred party label on the ballot.  See Schrader v Blackwell, McLaughlin v N.C. Board of Elections, Rubin v City of Santa Monica.  Plaintiffs showing of imminent harm is not sufficient.”

Superior Courts in California commonly issue tentative rulings the day before the hearing.  That gives the side that is likely to lose the case a chance to argue why the tentative opinion is incorrect.  It is rare for judges to revise their tentative opinions.

California Election Code section 8141.5, added by SB 6 (the implementing language for Proposition 14), says, “Only the two candidates for a voter-nominated office who receive the highest and second-highest numbers of votes cast at the primary shall appear on the ballot.”  Most people would read that sentence to refer only to names that are printed on the ballots (by the agency that prints the ballots), not names written in on the ballot by a voter.  Section 8606 says, “A person whose name has been written on the ballot as a write-in candidate at the general election for a voter-nominated office shall not be counted.”  Most readers would detect a difference between a law saying that write-in space should be omitted from printed ballots, and that law.  The California election code continues to say that write-in space should be printed on all ballots.  Section 15340, which was not amended by SB 6, says, “Each voter is entitled to write the name of any candidate for any public office on the ballot of any election.”  Section 8600, which was also not amended by SB 6, explains how any person can file to be a declared write-in candidate in any election.  Section 13212, which was also not amended by SB 6, says, “Under the designation of each office shall be printed as many blank spaces, defined by light lines at least 3/8ths of an inch apart but no more than one-half an inch apart, as there are candidates to be nominated or elected to the office.”

Concerning labels, none of the precedents mentioned in the tentative ruling relate to top-two systems.  Instead, they all refer to systems in which parties have nominees.  In the past, a few court cases have been filed by unqualified parties, who don’t have the strength to qualify as parties, but which are able to use the easier independent candidate procedures.  About half the states permit candidates who use the independent petition method to choose a partisan label, which is printed on the ballot.  The other half of the states don’t permit free choice of a label, but confine the candidate to the ballot label “independent.”  Courts have always refused to interpret the U.S. Constitution to require that candidates who use the independent petition method be permitted to choose any ballot label.  However, the rationale for that is that, in those states, the party label on the November ballot tells the voter that the candidate was nominated by a party with enough voter support to qualify as a party.  The logic does not relate to top-two systems, because in top-two systems, parties don’t nominate candidates, and the party label on the ballot is not meant to convey that the candidate is associated with that party, or that the party approves of that candidate.  The only meaning of “party preference” labels on the ballot in top-two systems is to give the voter an idea of that candidate’s ideas.  Therefore, there is no logic to say that some candidates should have a “party preference” whereas others should not.  The attorney for the plaintiffs, who include 2012 congressional candidates for the Reform Party and Socialist Action Party, will have a chance at the September 14 hearing to explain this.