Author of California “Top-Two” Denies that Measure Will Injure Minor Parties

Posted on by December 8, 2009
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California State Senator Abel Maldonado, the author of the bill for a “top-two open primary”, is touring California, speaking to newspapers. The chief purpose of his travels around the state is to win newspaper support and publicity for his own bid to become California’s Lieutenant Governor. Governor Arnold Schwarzenegger has chosen Maldonado to fill the vacancy in that job. However, Maldonado cannot take the Lieutenant Governorship post unless both houses of the legislature vote to confirm him.

As Maldonado travels the state, the newspapers always mention that he is the author of the “top-two open primary” measure that the legislature put on the June 2010 ballot. For the first time, one of the newspaper stories about that measure has mentioned the charge that the measure injures minor parties. The San Luis Obispo Tribune, to its credit, asked Maldonado about this. See this story. It says, “Maldonado strongly denied that the two-tier election system he has proposed would undermine third parties like the Libertarian and Green Parties.”

It is quite possible that Senator Maldonado doesn’t even realize that his measure makes it substantially more difficult for a ballot-qualified party to remain on the ballot. No newspaper story has mentioned that aspect of the plan. Existing law says a ballot-qualified party is one that polled at least 2% of the vote for any of the 7 or 8 statewide races on the ballot in a midterm year (parties get a free ride in presidential election years). This is a fairly easy test. But under Maldonado’s proposal, no party would have nominees in midterm years. Therefore, the only way parties can remain on the ballot is by having registration of approximately 100,000 members, something that neither the Libertarian Party, nor the Peace and Freedom Party, now have.

It is also quite possible that Senator Maldonado doesn’t even know that his measure says that write-ins could never be counted, for Congress and state office, in November. The irony is that both the write-in restriction, and the increased difficulty for parties to remain ballot-qualified, were completely unnecessary for the “top-two” measure. Neither of these characteristics was in Prop. 62, the earlier “top-two” measure, that was defeated by the voters in November 2004.

Washington State Files Brief With U.S. Supreme Court, Asking Court Not To Hear Case on Making Petition Signatures Public

Posted on by December 8, 2009
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On December 7, Washington state filed a brief with the U.S. Supreme Court in Doe v Reed, 09-559, asking the Court not to hear the case. The issue is whether the names and addresses of people who sign petitions should be made public. The Court will consider whether to hear the case at its conference on January 8, 2010.

The state’s brief says that the state interest in releasing the names and addresses is to let people review the work of the Secretary of State. In other words, if the Secretary of State says the petition has enough valid signatures, opponents of the petition might wish to contest the Secretary of State’s finding.

The brief also says that the signatures aren’t really private anyway, since if they are circulated in public (for instance, on the street) anyway can see who signed the sheet that is on display.

Finally, the brief says that if the petition’s opponents can’t learn who signed, that wouldn’t be fair, because the proponents of the petition are permitted to see who signed. The brief mentions that in California, the names and addresses of petition signers are not public information, and that even the proponents of a petition are not permitted to see their own petition, after it has been submitted. So, at least California is symmetrical, and denies the information to both sides.

Alabama Files Brief in 11th Circuit in Ballot Access Case

Posted on by December 7, 2009
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On December 7, Alabama filed its brief in Shugart v Chapman, the case pending in the 11th circuit over whether a state can require an independent candidate for US House to obtain more signatures than an independent candidate for president.

The U.S. Supreme Court has ruled twice, in 1979, and again in 1992, that states cannot require more signatures for an office in just part of the state, than for statewide office. Alabama argues that those precedents don’t apply if the statewide office is the office of President.

The U.S. Supreme Court also ruled in both 1979 and 1992 that when a state requires more signatures for an office in just part of the state than for a statewide office, that type of disparity is discriminatory. The U.S. Supreme Court also said in both cases that discriminatory ballot access laws cannot survive unless the state can show that the law is needed for a compelling state interest. But a few months later in 1992, the U.S. Supreme Court said that if the law under challenge is not discriminatory, then it can survive if it merely has a rational basis.

Alabama’s brief insists that the rational basis test applies, but the brief does not really address the point that since this case involves a discriminatory ballot access law, the rational basis test does not apply. And, indeed, it seems obvious that if Alabama can get along with 5,000 signatures for an independent candidate for President, there is no compelling state need to require more than 5,000 signatures for an independent candidate for U.S. House.